Jharkhand High Court
Lardhu Marandi & Ors vs State Of Jharkhand on 15 January, 2015
Author: Virender Singh
Bench: Virender Singh, D.N. Patel, R.R. Prasad
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Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 39 of 2008
(with I.A. No. 5773 of 2014)
WITH
Cr. Appeal (DB) No.1411 of 2008
(with I.A. No. 5863 of 2014)
WITH
Cr. Appeal (DB) No. 62 of 2009
(with I.A. No.1412 of 2014)
WITH
Cr. Appeal (DB) No. 830 of 2013
(with I.A. No.4939 of 2014)
WITH
Cr. Appeal (DB) No. 72 of 2014
(with I.A. No. 4436 of 2014)
----
I.A. No. 5773 of 2014 IN CR. APPEAL (DB) NO.39 OF 2008
1. Lurdhu Marandi
2. Samlal Marandi
3. Shivdhan Marandi
4. Balika Marandi
5. Dulali Marandi
6. Jivan Marandi
7. Gobardhan Marandi ... Appellants
-versus-
The State of Jharkhand ... Respondent
----
I.A. No. 5863 of 2014
IN CR. APPEAL (DB) NO. 1411 OF 2008
Bhikhu Marik @ Bhikho Marok ... Appellant
-versus-
The State of Jharkhand ... Respondent
----
I.A. No. 1412 of 2014
IN CR. APPEAL (DB) NO. 62 OF 2009
Haider Seikh ... Appellant
-versus-
The State of Jharkhand ... Respondent
----
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Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases
I.A. No. 4939 of 2014
IN CR. APPEAL (DB) NO. 830 OF 2013
Jitendra Mahato ... Appellant
-versus-
The State of Jharkhand ... Respondent
----
I.A. No. 4436 of 2014
IN CR. APPEAL (DB) NO. 72 OF 2014
Sudarshan Dashabya @ Sudarshan Dasdya ... Appellant
-versus-
The State of Jharkhand ... Respondent
----
CORAM : HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE R.R. PRASAD
----
For the Appellants : Mr. R. Sharma, Senior Advocate
Mr. Mahesh Tewari, Advocate
Mr. K.P. Deo, Advocate
For the Respondent-State : Mr. Hemant Kumar Shikarwar, A.P.P.
Order Reserved on 6th January, 2015 Pronounced on 15th January, 2015
Per Virender Singh, C.J.
A Division Bench of this Court in Criminal Appeal (D.B.) No. 586 of 2007, titled Anil Kumar @ Anil Kumar Singh versus State of Jharkhand, while dealing with an interlocutory application, moved under Section 389(1) Cr.P.C. (Central Code) for the second time for suspension of substantive sentence, the earlier one having been rejected once, wherein the Division Bench directed listing of the second application before the same Bench, which earlier heard the bail application or before the Bench in which one of the Hon'ble Judge is a member, the other Bench being not available because of transfer, retirement etc., the present five interlocutory applications in the aforesaid five different appeals, were placed before the Division Bench, headed by one of us (Brother Patel, J.). The Division Bench, observing that there is no such direction by the Hon'ble Supreme Court that once an application has been preferred for suspension of 3 Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases sentence and it is dismissed by one Division Bench, the same Division Bench should hear the subsequent application(s) preferred under Section 389 of the Code by the same accused, considered it to be a fit case for referring to the larger Bench. Hence this matter before Full Bench.
2. Order dated 13th of April, 2010 passed by the Division Bench in Criminal Appeal (D.B.) No. 586 of 2007 is quoted hereinbelow: -
"The practice prevailing, both in the Patna High Court and of this court also, that fresh application for renewal of bail usually to be listed before the same Bench which earlier heard the bail petition and rejected the same.
In our view, the practice should continue in order to maintain consistency in the orders. However, in exceptional circumstances, when the concerned Judge is not available because of transfer, retirement etc. the bail matters shall be placed before any other Bench.
In the instant case, the prayer for bail of the applicant was earlier rejected by a Bench comprising Hon'ble Amareshwar Sahay, J and Hon'ble D.P. Singh, J. Since one of the Hon'ble Judge is available, let the application be placed before a Bench, in which, Hon'ble Amareshwar Sahay, J. is a member."
3. The Division Bench, making a reference, has not precisely put the controversy in the form of a question to be resolved by the Full Bench. However, the following two questions have arisen calling for the answer from this Bench: -
(a) When a first application for bail preferred in a pending appeal under Section 389(1) of the Code has been considered by a Bench and faced rejection, should the successive and subsequent applications, except in exceptional circumstances, be also placed before the same Bench or be listed before the Bench that has been given the roster by the Chief Justice to deal with such matter?4
Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases
(b) If the first application for bail has been preferred under Section 389(1) of the Code and has been rejected by a Bench and if one of the members is available, whether the successive and subsequent application should be listed before a Bench of which he is a member or should it go before a Regular Bench as per roster assigned by the Chief Justice?
4. Mr. R. Sharma, learned Senior Advocate, Mr. Mahesh Tewari, Advocate Mr. K.P. Deo, Advocate and Mr. Hemant Kumar Shikarwar, learned Assistant Public Prosecutor have rendered assistance to the Court.
5. Mr. Tewari took the lead and submitted that whatever is observed in the order dated 13th April, 2010 in Cr. Appeal (DB) No.586 of 2007, on facts, perhaps, is not correct, as the practice prevailing in Jharkhand High Court earlier was that application for renewal of the bail was usually listed before the regular Bench, as per the roster assigned and not before the same Bench, which had earlier heard the bail petition and rejected. It is only after 13th of April, 2010, after the order came to be passed in Cr. Appeal (DB) No.586 of 2007, the successive bail application(s) moved under Section 389(1) of the Code are listed before the same Bench, which earlier heard and rejected the bail application or before a Bench in which one of the Hon'ble Judges is a member on account of non-availability of the second Judge. Mr. Tewari, thus, prayed for modification/alteration of the order dated 13th April, 2010 passed by the Division Bench in Cr. Appeal (DB) No.586 of 2007 praying that henceforth the second or successive bail application(s) moved by the convict under Section 389(1) of the Code for suspension of substantive sentence may be heard by the regular Bench having the roster and be not considered as a tied up matter as per the prevalent practice.
6. Mr. Tewari, vehemently supporting the earlier practice prevalent in this High Court, submitted that hearing of the fresh application(s) for renewal of the 5 Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases bail on changed circumstances are not being listed for months together and that the convicts have to languish in jail on that count.
7. Mr. Tewari, otherwise submitted that there is no provision in the High Court of Jharkhand Rules, 2001 (for short "High Court Rules 2001") from where it can be gathered that the successive application(s) under Section 389(1) of the Code has to be placed before the same Bench, which had earlier rejected the application, in absence thereof, the order passed by Division Bench in Anil Kumar's case (supra) would have no strength. He further submitted that even otherwise in terms of Rule 81 contained in Chapter III of High Court Rules 2001, whenever any interlocutory application is filed in a case, which is running before the Bench, on urgency being shown, the said application has to be laid on the records of the case without any delay and in case the successive bail application(s) has to be considered as a tied up matter for the purposes of listing it before the same Bench, it would defeat the very purpose of urgency being shown for the purpose of taking up the interlocutory application, in turn, Rule 81 of High Court Rule 2001 would become redundant.
8. Mr. K.P. Deo, while assisting the Court, however, is not in agreement with the view expressed by Mr. Mahesh Tewari and supported the aforesaid order dated 13th of April, 2010 stating that in case the second or successive bail application, on merits, is allowed by another Bench as per the roster, it would amount to setting aside of the earlier order of rejecting the bail, which exercise can be done by the Appellate Court only and not by the another Bench. According to Mr. Deo, this would create altogether a strange situation between the two Benches, in turn, affecting the judicial discipline. He, thus, prays for maintaining the order dated 13th April, 2010 passed by the Division Bench in Cr. Appeal (DB) No.586 of 2007.
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Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases
9. Mr. Sharma, learned Senior Counsel, however, submitted that some effective measures may be taken on administrative side so that the second or successive bail application(s) are heard at the earliest so that the fate of the convict is decided one way or the other. In principle, he supports the order dated 13th April, 2010 passed in aforesaid Cr. Appeal (DB) No.586 of 2007.
10. Learned State counsel, however, is in support of the Division Bench order.
11. No doubt that there is no such direction by the Hon'ble Supreme Court that once an application has been preferred for suspension of sentence under Section 389(1) of the Code by the convict-accused and it is dismissed by one Bench, the same Bench should only hear the subsequent application(s) moved for the same purpose, on which count the Division Bench of this Court has felt of referring the matter to the Larger Bench, but the decision of the Hon'ble Supreme Court rendered in case of Shahzad Hasan Khan versus Ishtiaq Hasan Khan & Another (AIR 1987 SC 1613) throws ample light to decide the question referred hereinabove.
12. In Shahzad Hasan Khan's case (supra), it has been held that long standing convention and judicial discipline require that the subsequent bail application(s) should be placed before the same Judge, who had passed the earlier order and who was available. The convention that subsequent bail should be placed before the same Judge, who has passed earlier order, has its roots in principle. It prevents abuse of process of Court inasmuch as an impression is not created that a litigant is hunting or selecting a Court depending on whether the Court is to his liking or not, and is encouraged to file successive bail applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders and a litigant would be 7 Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Court's time. Judicial discipline requires that such matters must be placed before the same Judge, if he is available for orders.
13. In State of Maharashtra versus Captain Buddhikota Subha Rao [AIR 1989 SC 2292], the Hon'ble Supreme Court, while dealing with the same situation, reiterated that in such a situation, the proper course is to direct that the matter be placed before the same learned Judge, who disposed of earlier application. Such a practice or convention would prevent abuse of process of the Court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a Court to secure an order of his liking. Such a practice would also discourage the filing of successive bail application(s) without there being change of circumstances. Such a practice, if adopted, would be conducive to judicial discipline and would also save the Court's time as a Judge, familiar with the facts, would be able to dispose of the subsequent application with dispatch. It will also result in consistency.
14. In Harjeet Singh versus State of Punjab [AIR 2002 SC 281], while following the earlier precedence, it has been held that an application for cancellation of bail should be placed before the same Judge, who has granted the bail earlier.
15. In M. Jagan Mohan Rao versus P.V. Mohan Rao & Another [(2010) 15 SCC 491], the Supreme Court held that where earlier bail application was rejected, subsequent bail application must be placed before the same Judge even though the roster has changed and Judge concerned is not regularly hearing bail applications any more and that the only exception is if that Judge is not available.
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Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases
16. In a very recent judgment, handed down by the Hon'ble Supreme Court in the case of Jagmohan Bahl & Another versus State (NCT of Delhi) & Another [2014 SCC Online SC 1024], it is held that the Judge, who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications. It is in consonance with the principle of judicial decorum, discipline and propriety. Needless to say, unless such principle is adhered to, there is enormous possibility of forum - shopping, which has no sanction in law and definitely, has no sanctity. If the same is allowed to prevail, it is likely to usher in anarchy, whim and caprice and in the ultimate eventuality shake the faith in the adjudicating system. This cannot be allowed to be encouraged.
17. In Jagmohan Bahl's case (supra) the Hon'ble Supreme Court referred to its pronouncement in the case of Chetak Construction Ltd. Versus Om Prakash [(1989) 4 SCC 577], wherein the Supreme Court observed that a litigant cannot be permitted "choice" of the "forum" and every attempt at "forum- shopping" must be crushed with heavy hand. Observation of the Supreme Court that Superior Courts of this country must discourage forum shopping as held in the case of Tamilnad Mercantile Bank Shareholders Welfare Association versus S.C. Sekar [(2009) 2 SCC 784] was also reiterated. It was further held that the decisions rendered in the aforesaid cases, although were in different context, but the principle is applicable to such like cases. It was, ultimately, observed that unscrupulous litigants are not to be allowed even to remotely entertain the idea that they can engage in forum-shopping, a depricable conduct in the field of law.
18. In Jagmohan Bahl's case (supra), the Hon'ble Supreme Court, with profit, referred to the decisions in Shahzad Hasan Khan's case (supra), 9 Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases Captain Buddhikota Subha Rao's case (supra) and M. Jagan Mohan Rao's case (supra) also.
19. It is, therefore, clear that insofar as bail applications under Section 439 of the Code are concerned, the series of decisions referred to hereinabove, leave no manner of doubt that once the bail application of an accused has faced rejection, any subsequent bail application for the said purpose is required to be placed before the same Bench/Judge, which had rejected the earlier application, if the Bench is available.
20. Whether the aforesaid settled principle will also be applicable in a case where the second or successive application is preferred under Section 389(1) of the Code, the earlier one having been rejected by a particular Bench?
In our considered view, the principle applicable in matters relating to subsequent or successive application under Section 439 of the Code would be applicable to the subsequent or successive bail application under Section 389 of the Code also, as in both the cases the result is that a person, may be an under trial prisoner or convict, is enlarged on bail. If the convict is released on bail by suspending his sentence under Section 389(1) of the Code, it is a temporary relief to him and in the event of his appeal being dismissed, he will be taken into custody. Similarly, in a case of under trial prisoner, the bail granted to him under Section 439 of the Code is also temporary in nature and on his conviction, the said bail would stand cancelled. Therefore, in both the eventualities, it is a respite to the under trial accused or a convict for the time being. So, basically the situation in an application filed under Section 439 of the Code or under Section 389 of the Code does not materially change so far as its' effect is concerned, but for the fact that one situation deals with grant of bail during the trial and the other situation deals with suspension of sentence and then bail during the pendency of the appeal.
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Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases
21. We appreciate this aspect, yet from another angle. While moving second bail application or successive bail application(s) under Section 439 of the Code, the plea of changed circumstance cannot be applicable to an under trial with the progress of trial depending upon the quality of the prosecution evidence adduced at different stages, yet the second bail application or the successive bail application(s) for the same purpose has to be heard by the same Bench, if available, as per the series of decisions of Hon'ble Supreme Court, whereas while dealing with an application under Section 389(1) of the Code, the facts of the prosecution case in which once the conviction is proved, would never change and he can develop his case only once for the purposes of suspension of sentence on merits of the appeal atleast and the said prayer, if declined on merits of the case, cannot be reagitated except in exceptional circumstances, which would be very few. Therefore, the second bail application or the successive bail application(s) should be heard by the same Bench, who has earlier rejected bail application of the convict. This is with regard to a matter to be taken by Division Bench. This situation, however, would not arise while dealing with an application under Section 389 of the Code to be heard by Single Bench for the reason that if that very Judge/Bench is not available, who had earlier rejected the bail application, it is to be placed before the Bench/Judge, having the regular roster assigned to a particular Bench.
22. We appreciate this situation, still from another angle. In case second or successive bail application is heard by a coordinate Bench, after having been rejected on merits by another Bench and incidentally in the wisdom of that very Bench, the second bail application is allowed, it would amount to disturbing the earlier order passed by the coordinate Bench and this exercise can be done only by a Court of Appeal and not otherwise. It, in turn, would disturb the judicial system and credibility of the Court, and this cannot be permitted. 11
Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases
23. As a sequel to the aforesaid discussion, two situations arise; one "judicial necessity" and the other "judicial compulsion". Judicial necessity requires that once the earlier bail application has been rejected by a particular Bench, the second bail application or successive bail application(s) for the same relief should be placed before the same Bench or before a Bench of which one of the members, who is available on account of transfer/retirement of the other member. This is in order to maintain the judicial discipline and credibility of the Court, may be at the cost of convenience of the Bench/Judge and it can also in some manner cause delay in considering other matters on the Board, but, these factors, in our considered view, take the back seat as judicial discipline or credibility of the Court is the paramount consideration. The second situation is when a particular Bench or none of its Members is available, as judicial compulsion, the second bail application or for that matter successive bail application has to be put up before the Bench as per the regular roster, as it cannot go unattended. These are exceptional circumstances. There can be other exceptional circumstances also where a convict can ask provisional bail projecting any valid ground for the same excepting merits of the case, then in that eventuality, the second application is not required to be placed before the same Bench, which had earlier rejected and should be placed before the regular Bench having the roster.
24. We may observe here that the argument advanced by Mr. Tewari that High Court Rules, 2001 are silent about placing the second bail application or successive bail application before the same Bench after the earlier being rejected has no weightage as this situation is made clear in Rule 68(3) of High Court Rules 2001, which reads: -
"68(3) No application to the same effect or with the same object as a previous application upon which a Judge has passed any 12 Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases order, other than an order or reference to another Judge or Judges, shall except by way of appeal, be presented to any other Judge or Judges, on behalf of any person on whose behalf such previous application was presented."
25. We are also conscious of Rule 81 of High Court Rules 2001 that an Interlocutory Application, which is running before the Bench, on urgency being shown, has to be taken up without any delay, but, this is a situation, which can be dealt with by us independently on administrative side and calls for no debate at least while deciding the issue now cropped up before us in the Full Court surface.
26. We, accordingly, answer to the aforesaid two questions formulated by us in paragraph 3 as under: -
(a) When a first application is preferred under Section 389(1) of the Code for suspension of substantive sentence by the accused/convict and considered by a Division Bench and faced rejection, the second application or for that matter successive application(s) for the same relief shall be heard by the same Division Bench, who has rejected the earlier bail application and not before the Bench which has been given the roster to deal with such matters.
(b) After the first application for suspension of sentence preferred under Section 389(1) of the Code has been rejected by a Bench and if one of the Members of the Bench is available, the subsequent bail application shall be listed before a Bench of which he is a Member and it should not go before the regular Bench as per the roster. It is only in exceptional circumstances, such bail application(s) shall go before the regular Bench as per roster.
However, the situation would be different in cases of applications under Section 389(1) of the Code to be dealt by Single Bench after once being rejected. If the same Bench is available, undoubtedly, it shall be heard by the same Bench and in the event of the Bench being not available on account of transfer, retirement, etc. or for any other exceptional 13 Cr. Appeal (DB) No. 39 of 2008 & Other Four Cases circumstance, the said application shall be put up before the regular Single Bench, as per roster.
27. The decision rendered in this Full Bench shall govern all the applications moved under Section 389(1) Cr.P.C., accordingly.
(Virender Singh, C.J.) (D.N. Patel, J.) (R.R. Prasad, J.) High Court of Jharkhand, Ranchi Dated, the 15th of January, 2015 AFR LAK